North Carolina Court Says Retaliatory Arrests Over Protected Speech Are Cool And Legal

from the in-which-the-court-flips-the-bird-to-citizens dept

Hey, SCOTUS says it's OK so it must be OK. Via Greg Doucette comes another WTF decision [PDF] -- one that gives North Carolina cops the green light to engage in retaliatory arrests over protected speech.

It's not like there's no case law to work with. The Eighth Circuit Appeals Court denied immunity to an officer who arrested someone for shouting "Fuck you!" at him as they drove by. Other federal courts have come to the same conclusion: flipping the bird/dropping f-bombs in the direction of police officers is protected speech and cannot form the basis for traffic stops or arrests.

In the state court of appeals, North Carolina judges have come to pretty much the same conclusion our nation's top court did: so long as an officer can imagine a crime has been committed, they're allowed to detain and arrest people who have offended them with their words and/or hand gestures.

And what a glorious hand gesture it must have been. Even the court's dry recounting of the event manages to paint a vivid picture of the event that kicked off this debacle.

The trooper was assisting a stalled motorist on the side of U.S. Highway 52 in Albemarle County. While assisting the motorist, the trooper noticed a group of passing vehicles, including an SUV. The trooper observed Defendant stick his arm out of the passenger window of the SUV and make a hand-waving gesture in the trooper’s general direction. The trooper then observed Defendant change the gesture to an up-and-down pumping motion with his middle finger extended. The trooper was unsure at whom Defendant was gesturing. In any event, the trooper returned to his patrol car, pursued the SUV, and pulled the SUV over.

If the trooper initiated a pursuit over a hand gesture, chances are the trooper felt very strongly the Defendant was hand gesturing at him. After some back-and-forth and background checks, the trooper decided to arrest the passenger of the vehicle for resisting, delaying and/or obstructing a public officer during a traffic stop. That's what the court records say. In reality, it was a "contempt of cop" arrest predicated by a contemptuous -- but protected -- hand gesture.

The court doesn't even discuss the fact that the trooper's stated reason for the arrest -- the passenger's refusal to provide ID to the trooper -- isn't even a criminal act. Vehicle passengers in North Carolina are under no obligation to provide ID during traffic stops.

[I]f you are operating a motor vehicle and are stopped by a police officer, you are required to produce your driver’s name/license/identification upon request. North Carolina General Statutes 20-90. Failure to do so is punished as a Class 2 misdemeanor, which carries a maximum penalty of up to 60 days in jail. Additionally, in some cases, if you do not produce identification, you may be charged with resisting an officer, which is a Class 2 misdemeanor, which carries a maximum penalty of up to 60 days in jail. This law applies to drivers of vehicles. It does not apply to passengers. Unless other circumstances exist, officers typically cannot require a passenger to produce identification during a traffic stop.

It doesn't appear there were any "other circumstances" during this retaliatory stop.

The trooper approached the SUV and observed Defendant and his wife, who was in the driver’s seat, take out their cell phones to record the traffic stop. The trooper knocked on Defendant’s window, whereupon Defendant partially rolled it down. The trooper asked Defendant and his wife for their identification. Defendant and his wife, however, asked the trooper why they had been stopped and stated that the trooper had no right to stop them. Eventually, Defendant’s wife gave the trooper her license, but Defendant refused to comply.

The trooper requested that Defendant step out of the vehicle, and Defendant eventually stepped out onto the side of the road. The trooper then handcuffed Defendant and placed him into his patrol car. While in the patrol car, Defendant gave the officer his name. The trooper ran warrants checks and obtained no results for Defendant nor his wife. The trooper then issued Defendant a citation for resisting, delaying, and obstructing an officer and allowed Defendant and his wife to leave.

All of this is fine with the state appeals court, which overlooks the lack of a criminal act in favor of giving the state's law enforcement an easier way to punish people for offending them. Reasonable suspicion -- at least in this court's hands -- has nothing to do with reasonableness. If the word "reasonable" is supposed to be pronounced "idiotic," then the following paragraph makes a lot more sense.

Here, without having to determine whether Defendant’s conduct of extending his middle finger, in itself, constituted a crime, we conclude that the trooper had reasonable suspicion to initiate the stop of Defendant. The trooper saw Defendant make rude, distracting gestures while traveling on a highway in a moving vehicle in the vicinity of other moving vehicles. A reasonable, objective officer having viewed Defendant’s behavior could believe that a crime had been or was in the process of being committed. For instance, the crime of disorderly conduct in North Carolina is committed where a person “makes or uses any . . . gesture . . . intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.” N.C. Gen. Stat. § 14-288.4(a)(2) (2017). Defendant’s actions, both his waving and middle finger taken together, aimed at an unknown target could alert an objective officer to an impending breach of the peace.

This is quite a judicial stretch. Anyone extending a middle finger at anyone/anything within eye-shot of a cop could be on the verge of "disturbing the peace" and should probably be arrested... before the peace is actually disturbed?

When the standard for "reasonable suspicion" is "literally anything," litigants have almost zero chance of prevailing when suing over retaliatory arrests. At least the Supreme Court demanded the higher standard of "probable cause," which isn't quite as flexible as "reasonable suspicion."

The court made this determination despite the state offering up an even stupider legal rationale to excuse this bullshit arrest. The court doesn't like it, but the state isn't the one appealing so its meritless argument ultimately has no effect on the outcome. But here it is, along with the court's response:

We note that the State made no argument on appeal that the trooper’s stop was justified by the presence of “reasonable suspicion.” Specifically, in its brief and during oral argument, the State essentially contends only that the trooper’s traffic stop was justified under the “community caretaking” exception, which allows an officer to initiate a stop even without the presence of reasonable suspicion of criminal conduct. State v. Sawyers, ___ N.C. App. ___, ___,786 S.E.2d 753, 758 (2016). But it is hard for us to fathom why the trooper would have believed that Defendant and his wife were in need of care at the point that Defendant refused to provide his identification. Indeed, the middle finger is, universally, not a sign of distress. And even if there was some basis to make the initial stop based on some concern for Defendant’s or his wife’s safety, any such concern rapidly dissipated when the officer observed their filming and protesting the stop as he approached the SUV, well before he asked Defendant for his identification.

That's stupid, but the court's findings in this case aren't that much smarter. There is a dissenting opinion, for what it's worth. Judge Arrowood says there's nothing reasonable about the court's take on "reasonable suspicion." Nothing about a drive-by bird flip adds up to a potential disturbing of the peace.

In the case sub judice, the adult defendant was in a moving car at midday, and there was no danger of a gathering crowd creating a public disturbance. There is also no testimony or indication that anyone other than the trooper, the person to whom the obscene gesture was directed, saw it. There was also no indication that the vehicle was creating any danger to other motorists on the road.

[...]

I do not believe that this action was sufficient to justify the trooper in becoming alert “to a potential, future breach of the peace,” because he did not see any evidence of aggressive driving or other interactions between the vehicles on the road that would suggest road rage. If that was truly his concern he could have followed the vehicle further to see if there was evidence of some road rage toward other vehicles. He did not do so, nor did he testify that he saw any improper driving. He chose not to take any actions to determine if road rage was occurring. Instead, he initiated an improper search and seizure to engage in an improper fishing expedition to find a crime with which to charge the defendant who had directed an obscene gesture to him moments earlier.

Too bad it's just a dissent. The majority should have arrived at the same conclusion, rather than give officers another way to abuse the citizens they serve.

Filed Under: free speech, north carolina, police

Voting Machine Makers Claim The Names Of The Entities That Own Them Are Trade Secrets

from the yeah-this-makes-you-all-look-way-less-shady dept

Recently, the North Carolina State Board of Elections asked suppliers of electronic voting machines a simple question: who owns you? (h/t Annemarie Bridy)

On June 14, 2019, the State Board of Elections requested that your companies disclose any owners or shareholders with a 5% or greater interest or share in each of the vendor’s company, any subsidiary company, of the vendor, and the vendor’s parent company.

This seems like very basic information -- information the Board should know and should be able to pass on to the general public. After all, these are the makers of devices used by the public while electing their representatives. They should know who's running these companies and who their majority stakeholders are. If something goes wrong (and something always does), they should know who's ultimately responsible for the latest debacle.

It's not like the state was asking the manufacturers to cough up code and machine schematics. All it wanted to know is the people behind the company nameplates. But the responses the board received indicate voting system manufacturers believe releasing any info about their companies' compositions will somehow compromise their market advantage.

Hart Intercivic said letting the public know that the company is owned by H.I.G. Hart, LLC and Gregg L. Burt is a fact that would devalue the company if it were made public.

Hart InterCivic, a corporation that derives independent actual value from this information not being generally known or readily ascertainable and makes reasonable efforts to maintain the secrecy of this information, requests that it be designated as a trade secret pursuant to G.S. § 132-1.2(1)d. and G.S. § 66-152(3).

Election Systems & Software (ES&S) said basically the same thing, claiming this information is "proprietary and confidential information:"

The following individuals and/or entities own 5% or more of the shares of Government Systems, Software & Services, Inc.:

McCarthy Group, LLC
Tom Burt
Tom O'Brien

Clear Ballot also claimed its list of owners was a trade secret:

Hello, per your request please see below for a list of our shareholders with a 5% or greater share of Clear Ballot Group, Inc. We have no other parent companies or subsidiaries:

1. Larry Moore
2. Tim Halvorsen
3. Steven Papa
4. Raging Capital Opportunity Fund V, LLC

Even this minimal amount of transparency had to be extracted at Board-point. While it's true private companies such as these are under no obligation to inform the public about the details of their ownership, they're all involved with providing goods and services to government agencies. Government agencies hooking up with private companies that treat ownership details as trade secrets isn't a good idea -- not when the government has certain transparency obligations.

Even with the release of these details, there's still plenty of secrecy to go around. Election security advocate Lynn Berstein says the ownership of voting machine companies is a deliberate, multi-layered mess designed to obscure who's running these shops -- and to possibly hide a bunch of stuff that looks like corruption, fraud, or general financial malfeasance.

One of ES&S's subsidiaries (and there are at least 39 of those) -- Meritage Homes Corp. -- shuffled some securities ownership the same day the North Carolina election board asked it to provide information about the company's ownership. Maybe it's a coincidence. Or maybe ES&S was offloading a politically-inconvenient owner. Whatever the case is, it certainly doesn't look good.

The government can't do everything itself. It will need vendors to supply goods and services. But these vendors need to operate under the same transparency the government is forced to, if they want to secure these lucrative contracts. Voters aren't given a choice in voting machine providers. They're stuck with whatever their government gives them. But when the government actually decides to perform a little vetting, the makes of the machines trusted to deliver accurate vote counts want to hide behind trade secret exceptions to prevent the public -- and their elected officials -- from knowing exactly who they're dealing with when they head into the voting booth.

Given the abhorrent track record of so many voting machine companies, it's no surprise they're extremely reluctant to share any details with the voting public. But that doesn't make them right. It just makes them a little bit more evil.

Filed Under: elections, north carolina, trade secrets, transparency, voting machines

Another Federal Court Says Compelled Decryption Doesn't Raise Fifth Amendment Issues

from the not-a-blanket-statement,-but-more-often-than-not dept

Another federal court is wrestling with compelled decryption and it appears the Fifth Amendment will be no better off by the time it's all over. A federal judge in North Carolina has decided compelling decryption of devices is only a small Fifth Amendment problem -- one that can be overlooked if the government already possesses certain knowledge. [h/t Orin Kerr]

The defendant facing child porn charges requested relief from a magistrate's order to compel decryption. The government isn't asking Ryan Spencer to turn over his passwords. But it wants exactly the same result: decrypted devices. The government's All Writs Order demands Spencer unlock the devices so law enforcement can search their contents. As the court notes in the denial of Spencer's request, the Fifth Amendment doesn't come into play unless the act of production -- in this case, turning over unlocked devices -- is both "testimonial" and "incriminating."

Spencer argued both acts are the same. The government may not ask him directly for his passwords, but a demand he produce unlocked devices accomplishes the same ends. As the court notes, the argument holds "superficial appeal." It actually holds a bit more than that. A previous dissenting opinion on the same topic said the government cannot compel safe combinations by "either word or deed."

This opinion [PDF], however, goes the other way. Judge Breyer likes the wall safe analogy, but arrives at a different conclusion than Justice Stevens did in an earlier dissent. The court finds drawing a Fifth Amendment line at password protection would produce a dichotomy it's not willing to accommodate.

[A] rule that the government can never compel decryption of a password-protected device would lead to absurd results. Whether a defendant would be required to produce a decrypted drive would hinge on whether he protected that drive using a fingerprint key or a password composed of symbols.

The refusal to craft this bright line ultimately makes little difference. The line already exists. Almost no courts have said the compelled production of fingerprints is a Fifth Amendment violation. Producing passwords, however, is an issue that's far from settled. In the cases that have gone the government's way, the key appears to be what the government already knows: the "foregone conclusions." The same goes here.

The court admits producing unlocked devices strengthens the government's case even before any searches take place.

So: the government’s request for the decrypted devices requires an act of production. Nevertheless, this act may represent incriminating testimony within the meaning of the Fifth Amendment because it would amount to a representation that Spencer has the ability to decrypt the devices. See Fisher, 425 U.S. at 410. Such a statement would potentially be incriminating because having that ability makes it more likely that Spencer encrypted the devices, which in turn makes it more likely that he himself put the sought-after material on the devices.

But that only deals with the incrimination side. Is it testimonial? The court thinks it isn't. Or at least, it believes whatever testimonial value it adds is almost nonexistent. All the government needs to show is that the defendant has the ability to unlock the devices.

Turning over the decrypted devices would not be tantamount to an admission that specific files, or any files for that matter, are stored on the devices, because the government has not asked for any specific files. Accordingly, the government need only show it is a foregone conclusion that Spencer has the ability to decrypt the devices.

It's a low bar but one that's sometimes difficult to reach if the government can't clearly link the defendant to the locked devices obtained during the search of a residence or business. As the court notes, it requires more than a reasonable assumption that files the government seeks might reside on the locked devices.

But it is nonsensical to ask whether the government has established with “reasonable particularity” that the defendant is able to decrypt a device. While physical evidence may be described with more or less specificity with respect to both appearance and location, a defendant’s ability to decrypt is not subject to the same sliding scale. He is either able to do so, or he is not. Accordingly, the reasonable particularity standard cannot apply to a defendant’s ability to decrypt a device.

The government needs far more if it seeks to compel decryption.

The appropriate standard is instead clear and convincing evidence. This places a high burden on the government to demonstrate that the defendant’s ability to decrypt the device at issue is a foregone conclusion. But a high burden is appropriate given that the “foregone conclusion” rule is an exception to the Fifth Amendment’s otherwise jealous protection of the privilege against giving self-incriminating testimony.

And the court finds the government does possess clear, convincing evidence.

All three devices were found in Spencer’s residence. Spencer has conceded that he owns the phone and laptop, and has provided the login passwords to both. Moreover, he has conceded that he purchased and encrypted an external hard drive matching the description of the one found by the government. This is sufficient for the government to meet its evidentiary burden. The government may therefore compel Spencer to decrypt the devices.

There is one caveat, however.

Once Spencer decrypts the devices, however, the government may not make direct use of the evidence that he has done so.

As the court points out, if the government's foregone conclusion is the correct conclusion, additional evidence linking Spencer to the locked devices will be unnecessary. The government should have no use for the testimony inherent in the act -- the concession that Spencer owned and controlled the now-unlocked devices, making him ultimately criminally responsible for any evidence located in them.

In terms of compelled production, passwords continue to beat fingerprints for device security, but only barely.

Filed Under: 5th amendment, all writs act, decryption, due process, encryption, north carolina, passwords, ryan spencer

Cops Wanting To Track Movements Of Hundreds Of People Are Turning To Google For Location Records

from the wherein-'probable-cause'-is-defined-as-'maybe-this-might-be-helpful? dept

Police in Raleigh, North Carolina are using Google as a proxy surveillance dragnet. This likely isn't limited to Raleigh. Google harvests an astounding amount of data from users, but what seems to be of most interest to law enforcement is location info.

In at least four investigations last year – cases of murder, sexual battery and even possible arson at the massive downtown fire in March 2017 – Raleigh police used search warrants to demand Google accounts not of specific suspects, but from any mobile devices that veered too close to the scene of a crime, according to a WRAL News review of court records. These warrants often prevent the technology giant for months from disclosing information about the searches not just to potential suspects, but to any users swept up in the search.

The good news is there are warrants in play. This likely isn't due to the PD's interest in "balancing civil rights with public safety," no matter what the government's frontmouths have stated to the press. The WRAL report includes a warrant request containing a footnote indicating Google pushed back when the cops showed up with a subpoena demanding info on everyone who had been in the vicinity of a crime scene.

The State of North Carolina maintains that the information sought herein consists entirely of "record[s]" other than the "content of communications…" Such records, require only a showing that there are reasonable grounds to believe the information sought is relevant and material to an ongoing criminal investigation… Despite this, Google has indicated that it believes a search warrant, and not a court order, is required to obtain the location data sought in this application. Although the Government disagrees with Google's position, because there is probable cause to believe the information sought herein will contain evidence of the criminal offenses specified in this affidavit, the Government is seeking a search warrant in this case.

But the bad news is that warrants are supposed to be tailored to specific searches related to specific suspects. These warrants are allowing law enforcement to obtain information on dozens or hundreds of people entirely unrelated to the criminal act being investigated, other than their proximity to the crime scene.

At least 19 search warrants issued by law enforcement in Wake County since 2015 targeted specific Google accounts of known suspects, court documents show.

But the March search warrants in the two homicide cases are after something different.

The demands Raleigh police issued for Google data described a 17-acre area that included both homes and businesses. In the Efobi homicide case, the cordon included dozens of units in the Washington Terrace complex near St. Augustine's University.

Cellphones -- and any other devices using Google products that serve up location info -- are steady generators of third party records. Conceivably, this puts a wealth of location info only a subpoena's-length away from the government. It appears Google is pushing back, but that tactic isn't going to work in every case. The Raleigh PD may have been willing to oblige Google to avoid a fight in court (and the risk of handing over information about how often it approaches third parties for records and what it demands from them), but not every PD making use of Google's location info stash is going to back down this easily.

Other warrants obtained by WRAL show local law enforcement has collected phone info and location data on thousands of people while investigating such crimes as arson and sexual battery. Despite having no evidence showing the perpetrators of these crimes even had a cellphone in their possession at the time the incidents occurred, agencies approached Google with judge-approved warrants to collect data on people living in nearby apartment units or visiting local businesses near the crime scene.

The government's attorneys believe everything is perfectly fine because no communications or other content is collected. But defense attorneys and rights advocates point out these warrants approach civil liberties from entirely the wrong direction, making everyone in the area a suspect before trimming down the list. In one way, it's a lot like canvassing a neighborhood looking for a suspect. But this analogy only holds if everyone officers approach is viewed as a suspect. This isn't the case in normal, non-Google-based investigations.

After five years as a Wake County prosecutor, Raleigh defense attorney Steven Saad said he's familiar with police demands for Google account data or cell tower records on a named suspect. But these area-based search warrants were new to him.

"This is almost the opposite technique, where they get a search warrant in the hopes of finding somebody later to follow or investigate," Saad said. "It's really hard to say that complies with most of the search warrant or probable cause rules that we've got around the country."

The Wake County District Attorney believes these warrants are solid enough to survive a challenge in court. The government may get its wish. Officers using these to obtain data will likely come out alright, thanks to good faith reliance on approved warrants, but the magistrates approving dragnet collection as an initial investigatory step may have some explaining to do.

The DA says it's just like watching business surveillance video when investigating a robbery. Lots of non-criminals will be captured on tape and their movements observed by officers. But the comparison fails because, in most cases, the criminal act will be caught on tape, limiting further investigation to the perpetrators seen by officers. In these cases, everyone with a cellphone within a certain distance of crime scene becomes a suspect whose movements are tracked post facto by officers who have no idea -- much less actual probable cause to believe -- that any of this data actually points to the suspect they're seeking.

Then there's the problem of effectiveness. Starting an investigation with a geofence and attempting to turn it into a bottleneck that will result in pursuable suspects doesn't seem to be working. According to the documents seen by WRAL, only one person has been arrested for any of the crimes in which police approached Google for data on thousands of users. And in that case, the location data law enforcement requested didn't show up until months after the suspect was charged. It may be there have been more success stories, but routine sealing of documents and warrants tends to make it impossible for anyone outside of the police department to know for sure. But the department knows. And if it has good things to say about this questionable search technique, it hasn't offered to share them with the rest of the public.

Filed Under: location info, north carolina, police, raleigh, surveillance, warrants
Companies: google

North Carolina Election Agencies First Learned They'd Been Hacked From Leaked Documents Published By The Intercept

from the accelerated-disclosure dept

At the time, the documents leaked by NSA contractor Reality Winner -- showing Russian interference in the recent election -- didn't seem to be of much importance. They showed something that had long been suspected, but also showed the NSA performing the sort of surveillance no one really disapproves of. The documents were in the public's interest, but weren't necessarily of the "whistleblower" variety.

That aspect of the documents hasn't changed, but public interest in the unauthorized disclosure certainly has. In a post for Emptywheel, Marcy Wheeler takes on an NPR story about actions taken by electoral agencies as a result of the leak.

The company that provided the software for the poll books is VR Systems — the company that the document Reality Winner leaked showed had been probed by Russian hackers.

[S]usan Greenhalgh, who’s part of an election security group called Verified Voting, worried that authorities underreacted. She was monitoring developments in Durham County when she saw a news report that the problem pollbooks were supplied by a Florida company named VR Systems.

“My stomach just dropped,” says Greenhalgh.

She knew that in September, the FBI had warned Florida election officials that Russians had tried to hack one of their vendor’s computers. VR Systems was rumored to be that company.

Now, there's an investigation underway in North Carolina, linked directly to the documents leaked by Reality Winner. Josh Lawson, general counsel for the state's board of elections, said it first learned about the hacking from the Intercept's article.

Which makes you wonder when the federal government was going to get around to notifying affected state agencies. When local agencies are learning about Russian hacking from leaked documents rather than straight from the source, the downward flow of pertinent information seems to be more than a little broken.

Not that this news will do Winner any good as she heads to court. As noted by Ed Snowden earlier, and reaffirmed here by Marcy Wheeler, any positive outcomes resulting from leaked documents can't be raised by the defendant.

Last week, Magistrate Judge Brian Epps imposed a protection order in her case that prohibits her or her team from raising any information from a document the government deems to be classified, even if that document has been in the public record. That includes the document she leaked.

The protective order is typical for leak cases. Except in this case, it covers information akin to information that appeared in other outlets without eliciting a criminal prosecution. And more importantly, Winner could now point to an important benefit of her leak, if only she could point to the tie between her leak and this investigation in North Carolina.

With the protection order, she can’t.

This is generally how things go in espionage cases. This is what Snowden detractors ignore when they argue he should just return home and face a "fair trial." There are no fair trials in espionage cases. In Winner's case, the order is so broad it forbids her legal reps from discussing any classified document or any document they believe might be classified (or derived from classified documents), even if those documents have been leaked and published by journalistic entities.

The info in the leaked documents led to an investigation. This may excuse the leak in the minds of those whose first encounter with evidence of Russian hacking came from a site known for publishing leaks, rather than the federal government performing the surveillance that uncovered it. But this is of no use to Reality Winner, or any leaker in her position. No matter how much good may result from unauthorized disclosures, the government only cares about the authorization.

Filed Under: hacking, leak, north carolina, nsa, reality winner

North Carolina Passes An Entirely Misguided Restore Campus Free Speech Act

from the speech-is-speech dept

You will recall that we were just discussing a proposed law in Wisconsin that sought to do a number of things on college campuses, including limit the ability to protest and shout down controversial speakers, as well as mandating quite insanely that school administrations must "remain neutral" on the "controversial" topics of the day. It's a source of frustration for me that it's not immediately clear how bad an idea this is for any number of reasons. My two chief complaints about the law, built upon a legislative proposal from the Goldwater Institute, are how broad a range of topics this could conceivably cover and how it quite plainly seeks to favor one form of speech over another. Put simply, giving state governments oversight about which topics a university administration is allowed to opine while also mandating punishments for students who protest to shout down speakers is about as anti-free speech as it gets, even as the proponents of the legislation attempt to shroud themselves in that most sacred of American ideals.

Well, North Carolina also had a similar bill under consideration, and indeed the state went ahead and passed its Restore Campus Free Speech Act. When you travel to that National Review link and/or read the pull quotes below, keep in mind that these are the words of a supporter of the bill and someone, Stanley Kurtz, who worked on the original Goldwater proposal.

The North Carolina Restore Campus Free Speech Act achieves most of what the Goldwater proposal sets out to do. It ensures that University of North Carolina policy will strongly affirm the importance of free expression. It prevents administrators from disinviting speakers whom members of the campus community wish to hear from. It establishes a system of disciplinary sanctions for students and anyone else who interferes with the free-speech rights of others, and ensures that students will be informed of those sanctions at freshman orientation. It reaffirms the principle that universities, at the official institutional level, ought to remain neutral on issues of public controversy to encourage the widest possible range of opinion and dialogue within the university itself. And it authorizes a special committee created by the Board of Regents to issue a yearly report to the public, the regents, the governor, and the legislature on the administrative handling of free-speech issues.

It all sounds so reasonable until you actually think about the implications of the law. Let's address them in order.

To start, requiring a university to affirm the importance of free expression is the kind of pablum born from trying to establish that there is a problem where one doesn't actually exist. Does anyone imagine that polling the nation's universities on this question would result in some schools saying, "Meh, free expression isn't that big a deal"? Come on.

As for disinviting speakers that "members of the campus wish to hear from", let's talk about that. First, how many members of campus are we talking about? And how are we to gauge their interest? If some tiny college group wants to invite a controversial speaker to campus to speak, where 90% of the campus doesn't want them anywhere near the campus, the administration is simply supposed to keep its hands tied? Or are the numbers something different? All of this is unclear in the law, even as it happily neuters a school's ability to manage its own campus. Why is a state legislature a better arbiter of who belongs on campus than the school itself?

Then there are the disciplinary sanctions on students that "interfere with the free-speech rights of others". This is the really silly part, because it seeks to scholastically criminalize speech in order to protect speech. The proponents of this law will want to say that this refers to students rioting, or accosting would-be invited speakers, but there are already laws on the books to prosecute those crimes. Instead, this law seeks to punish students that attempt to shut down speaking engagements via peaceful protest, which is a form of speech. The law originally required mandatory suspension from school for students who are found to have violated the law twice. The universities beat that back and had it struck, but the proponents of the bill aren't even pretending that they aren't trying to stop anything other than the speech of students, while also detailing how its newly-created committee reports will be used to simply toss out adminstrators lovers of the law don't like.

Without the mandatory suspension for a second offense, the university could conceivably undermine the law through lax enforcement. Yet it’s not as simple as that. If the university refuses to discipline shout-downs in the wake of passage of this law, there will be consequences. For one thing, the annual report of the Board of Governors will either condemn the refusal to discipline, or the committee will itself be subject to public criticism. A negative report on the administrative handling of discipline would give the Board of Regents a reason to replace administrators, and legislators a reason to cut university funds.

Punishing "shout-downs"? That's a pretty bald-faced acknowledgement that this bill will curb the free speech of students in favor of the free speech of invited speakers. In other words, this bill cuts in only one direction: students that are paying to attend school now have less speech rights than guests invited onto the campus. If that doesn't immediately demonstrate how flatly gross this bill is, you need to recalibrate your sensors.

Look, I said this in the last post, but I'll say it again: anyone that wants to say that campuses today are not as open to outside or unpopular viewpoints as they once were or should be won't get anything other than agreement for me. I tend to think the problem is overstated in certain circles, but I do agree that campuses today are generally less open-minded than they should be. But the solution to that is to win the argument via speech, not to run crying to state legislatures to simply curb the speech of others.

Filed Under: campus, free speech, goldwater proposal, north carolina, wisconsin

Supreme Court Says You Can't Ban People From The Internet, No Matter What They've Done

from the good-to-see dept

Going all the way back to 2002 (and many times after that), we've talked about courts struggling with whether or not it's okay to ban people from the internet after they've committed a crime. The question comes up in many different cases, but most prevalently in cases involving child predators. While courts have struggled with this issue for so long, it's only now that the Supreme Court has weighed in and said you cannot ban someone from the internet, even if they're convicted of horrific crimes -- in this case, sex crimes against a minor. The case is Packingham v. North Carolina, and the Supreme Court had to determine if it violated the First Amendment's free speech clause and the Fourteenth Amendment's due process clause, to make it a felony for convicted sex offenders to visit social media sites like Facebook and Twitter, as was the case under a North Carolina law.

In this case, Lester Packingham is a convicted sex offender for an event that happened back in 2002. In 2010, he went on Facebook to brag about getting a traffic ticket dismissed -- using his middle name as his last name. A local police officer saw the post and connected the dots to figure out that the poster "J.R. Gerard" was actually Lester Gerard Packingham and charged him with violating that NC law on using social media as a sex offender. Various state courts went back and forth with the NC Supreme Court eventually saying that the law was "constitutional in all respects." The Supreme Court of the United States, however, did not agree.

The ruling is interesting on a number of levels. It cites, pretty directly, EFF's amicus brief, noting just how important and central to our lives sites like Facebook have become.

While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. Seven in ten American adults use at least one Internet social networking service. Brief for Electronic Frontier Foundation et al. as Amici Curiae 5–6. One of the most popular of these sites is Facebook, the site used by petitioner leading to his conviction in this case. According to sources cited to the Court in this case, Facebook has 1.79 billion active users. Id., at 6. This is about three times the population of North America.

Social media offers “relatively unlimited, low-cost capacity for communication of all kinds.” Reno, supra, at 870. On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos. On LinkedIn, users can look for work, advertise for employees, or review tips on entrepreneurship. And on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner. Indeed, Governors in all 50 States and almost every Member of Congress have set up accounts for this purpose. See Brief for Electronic Frontier Foundation 15–16. In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.”

The opinion, written by Justice Kennedy, notes that the internet is a vast and changing place, and notes that the court does need to proceed with caution -- but that caution must be in the direction of protecting Constitutional rights:

This case is one of the first this Court has taken to address the relationship between the First Amendmentand the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the FirstAmendment provides scant protection for access to vast networks in that medium.

And then, the opinion dives right in and says that the law is obviously a violation of the First Amendment for not being "narrowly tailored." Again, while there are a few limited exceptions to the First Amendment, they are very narrowly tailored and the Supreme Court has shown little to no interest in expanding them:

Even making the assumption that the statute is content neutral and thus subject to intermediate scrutiny, the provision cannot stand. In order to survive intermediate scrutiny, a law must be “narrowly tailored to serve a significant governmental interest.” ... In other words, the law must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” ...

And this law is not, at all, narrowly tailored. Once again, SCOTUS leans heavily on EFF's amicus brief to point out how overly broad this NC law is:

It is necessary to make two assumptions to resolve this case. First, given the broad wording of the North Carolina statute at issue, it might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com. See post, at 6–9; see also Brief for Electronic Frontier Foundation 24–27; Brief for Cato Institute et al. as Amici Curiae 10–12, and n. 6. The Court need not decide the precise scope of the statute. It is enough to assume that the law applies (as the State concedes it does) to social networking sites “as commonly understood”—that is, websites like Facebook, LinkedIn, and Twitter....

From there, it notes that clearly a state could bar more specific and narrowly tailored actions that are not broadly targeting speech:

Second, this opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue. Specific criminal acts are not protected speech even if speech is the means for their commission.... Though the issue is not before the Court, it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.

But this law obviously goes way beyond that, and the Court is troubled by this, calling it "unprecedented in the scope of First Amendment speech it burdens."

Even with these assumptions about the scope of the law and the State’s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind.... By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with anInternet connection to “become a town crier with a voice that resonates farther than it could from any soapbox."...

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

The above part is the key part of this ruling, and I fully expect it to be cited repeatedly in future cases. It's the Supreme Court declaring, quite clearly, that the ability to use the internet is vital to being a part of society today, and thus there's a fundamental First Amendment right to be able to do so.

Three Justices -- Alito, Roberts and Thomas -- concur with the overall opinion, but do take some issue with the expansive nature of Kennedy's opinion, suggesting it goes too far. In the concurrence, written by Alito, they note:

I cannot join the opinion of the Court, however, because of its undisciplined dicta. The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks.... And this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers. I am troubled by the implications of the Court’s unnecessary rhetoric.

I don't see how they can read the majority opinion to say that. Kennedy's opinion makes it quite clear that such things can be restricted where it's clear that these actions are narrowly targeted at situations that "often presages a sexual crime." Either way, I get the feeling that, despite these concerns, this case will be cited in useful ways to protect free speech in the future...

Filed Under: first amendment, free speech, internet, lester packingham, north carolina, packingham, public square, scotus, supreme court

Officers Cite Nonexistent Law In Attempt To Prevent Citizen From Filming Them During A Traffic Stop

from the cf:-some-shit-we-made-up-at-that-other-stop dept

Fortunately for law enforcement officers (but not so much for lowly citizens), courts have routinely affirmed that officers don't need to know the laws they're enforcing to stay in the law enforcement business. No one expects cops to be legal scholars, but the least they could do is get a second opinion when they're faced with a situation where applicable laws may -- or just as frequently, may not -- exist.

We've seen nonexistent laws abused before. Most of the time, a perceived moving violation acts as the groundwork for a fishing expedition. This is fine, sayeth the courts. Other times, nonexistent laws are cited to shut down photographers or harass people otherwise minding their own business.

Texas law enforcement officers are notorious for this. They frequently -- and possibly willfully in some cases -- misread the state's failure to identify statute as meaning they're allowed to demand identification from anyone at any time. They could not possibly be more wrong.

The perfect storm of law enforcement beclownery occurs when they interact with someone who actually knows the law. The bluffing commences in a real-time display of "our word against yours," with officers assisting each other in collective ignorance because, if might makes right, then a united citation of nonexistent statutes by armed men is the rightest thing of all.

Too bad these officers pulled over a defense lawyer. In the officers' defense, they couldn't have possibly known this fact ahead of time. (h/t Adam Steinbaugh)

A Wilmington police sergeant is shown on video instructing a citizen who was pulled over for a traffic stop that he is not allowed to record the interaction due to a new state law prohibiting the recording of police interactions.

Shortly after that, a New Hanover County Sheriff's deputy agrees with the officer that there is a new state law. There is no such law in North Carolina.

The citizen was defense attorney Jesse Bright, who drives for Uber in his spare time. The cops arrested his passenger, then cited a nonexistent law in hopes of preventing him from recording the encounter.

The entire stop lasted more than 20 minutes, culminating in a drug dog sniff of the vehicle (in which the drug dog may or may not have alerted -- officers refused to tell Bright what this dog's alert looked like). The dog apparently gave the officers permission to search Bright's car. Nothing illegal was found. And the only people being evasive or disingenuous were the police officers, who answered Bright's direct questions vaguely or not at all.

Fortunately for Bright -- who will presumably be filing a civil rights lawsuit -- the entire dog-and-jackass show was recorded on his camera. Sure, some of the responding officers were wearing body cams, but it usually takes litigation (or the threat thereof) to liberate this footage. And, in many cases, what's turned over is incomplete, either due to redaction or mysteriously-malfunctioning/unactivated recording devices.

There are two raw recordings at WECT's site. The first is the Q&A session in which Bright is told he's violating a nonexistent recording law. The second shows the K-9 sniff and subsequent vehicle search.

On the bright side, the officers' employer isn't defending their actions.

Chief Ralph Evangelous issued the following statement Wednesday in response to the videos:

“Taking photographs and videos of people that are in plain sight including the police is your legal right. As a matter of fact we invite citizens to do so when they believe it is necessary. We believe that public videos help to protect the police as well as our citizens and provide critical information during police and citizen interaction.”

The WPD stated that each officer will be given this statement to read as well.

A sheriff's deputy was also on hand for the mini-debacle, but he has already been cleared by his agency. However, the sheriff's department also made it clear there is no law against recording officers.

Sheriff McMahon has viewed the Uber driver’s video and believes it is clear that Officers were incorrect in stating that it was illegal to record the encounter. Not only does the Sheriff agree that it is legal to record encounters, he invites citizens to do so. As a result, the Deputy involved has been counseled.

Additionally, in keeping with Sheriff McMahon’s practice of openness and transparency with the citizens that we serve, he has instructed his Staff to ensure that each Deputy has been provided with information about the citizen’s right to record encounters with law enforcement officers.

But for video, as they say. Bright's video of the encounter wasn't held up by red tape, angry union officials, poorly-written public records laws, department stonewalling or a plain old [FILE NOT FOUND] error. His was self-released expeditiously, providing an indisputable account of the events. This possibly explains the lack of law enforcement dissembling or statements insisting everyone should just wait until all the [favorable] facts are in.

Filed Under: filming police, jesse bright, north carolina, police
Companies: uber

After North Carolina Law Bans Municipal Broadband, One ISP Gives Gigabit Connections Away

from the shooting-yourself-in-the-foot dept

Back in August, we noted how the FCC lost an incredibly important case regarding municipal broadband. In short, the FCC tried to dismantle state-level protectionist laws, written by incumbent ISPs, that hamstring towns and cities from building their own broadband networks or striking public/private partnerships for broadband -- even in areas those same incumbent ISPs refused to upgrade. The FCC had tried to claim that its congressional mandate to ensure "even and timely" broadband deployment allowed it to strip away any part of these laws that hindered broadband expansion.

But the courts argued that the FCC lacks this authority, forcing the agency to acknowledge it was giving up on this fight. But there are still countless municipal broadband providers in the 19 states that have passed these laws that can't launch or expand existing service lest they run face-first into a law written by Comcast, AT&T, Verizon, or CenturyLink lawyers. And there are millions of customers that are incredibly frustrated by the lack of broadband market competition, resulting in the expensive, inconsistent broadband connections most of us "enjoy" today.

In North Carolina, it took Time Warner Cable four attempts to convince the state legislature to pass such a protectionist law. The FCC's failure to dismantle this law resulted in one municipal ISP, Greenlight, facing the specter of having to disconnect customers in a neighboring county given the ban on selling municipal broadband. In response, the ISP has decided not to sell broadband to these neighbors at all, instead announcing this week that it would be giving away gigabit service for free until it can figure out what to do next:

"Wilson officials voted Thursday to provide free Greenlight Community Broadband services to existing customers outside the county on a limited basis until efforts are successful in overturning the law that prohibits fee-based municipal broadband beyond the county line.

“While the short-term fix is not perfect, it was the only alternative we had to disconnecting our neighbors,” said Wilson Mayor Bruce Rose. “Taking broadband service from the people of Pinetops would have been a terrible blow, especially when they are still recovering from Hurricane Matthew."

And while that's quite a feel good story and a nice move by Greenlight, the reality is there's nobody coming to the rescue of these states any time soon in the wake of the FCC's loss. Incumbent telecom providers have such a stranglehold over state legislatures, they're being allowed to quite literally write the law. In most instances, the states that pass these laws wind up being among the least connected and competitive broadband states in the union. That leaves the only solution being to vote these beholden lawmakers out of office.

The problem is that ISPs have historically been successful in framing this as a partisan issue, one in which the mean ol' government is competing unfairly with the innocent daisies in private industry. This narrative usually involves framing all municipal broadband efforts as unmitigated financial disasters, while trying to claim these laws are necessary to protect poor, naive citizens from themselves. As such efforts in Congress to pass new laws banning state protectionist laws have consistently been scuttled, in part thanks to a public voter base that has been tricked into rooting against its own best self-interest.

The reality however is that this isn't a partisan issue at all. In fact, most municipal broadband networks are being built in Conservative areas with the support of Conservative voters. As these voters grow more and more disenfranchised by the existing duopoly status quo, it's getting harder and harder to convince them that letting AT&T, Verizon and Comcast buy protectionist, anti-competitive state law is perfectly fine, while building local, better broadband networks that dramatically improve local quality of life is the very worst sort of villainy.

Filed Under: broadband, competition, fcc, municipal fiber, north carolina
Companies: greenlight